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Speak up to stop secrecy in the House

The Indiana House has declared itself above a law the House itself enacted. And it would appear there’s not a darned thing that can be done about it.

Well, maybe one thing, if you’re willing to help. But first, some particulars.

The law is Indiana’s Access to Public Records Act, enacted in 1983, which declares that “… all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.”

The law also states: “Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees.”

But for years, legislators have acted as though the act also contains the phrase, “except for us lawmakers.”

So even though any communications between House Utilities and Energy Committee Chairman Eric Koch and utility companies on the subject of solar power might seem of public interest, it wasn’t really a surprise when the House Republican Caucus denied a request from a consumer group for such emails or other messages. The law doesn’t apply to us, the caucus’ attorney said. End of story.

Except this time, Indiana Public Access Counselor Luke Britt offered advisory opinions that the open-records law does indeed apply to legislators. The act allows lawmakers to designate and shield some types of documents or emails as “work products,” Britt noted, but he urged them to err on the side of transparency.

Though the House Republican Caucus still wouldn’t budge, the Citizens Action Coalition of Indiana and the Washington-based Energy and Policy Institute filed a lawsuit.

And suddenly, without acknowledging the fiction of their contention that the open-records act doesn’t even apply to them, legislators made an attempt during the final hours of this year’s session to sneak expanded exceptions for legislators into an unrelated bill. House Speaker Brian Bosma squelched it, saying it’s “inadvisable to put legislation together at the last second despite the appropriateness of it.”

On May 31, The Journal Gazette’s Niki Kelly revealed that just after the session ended in April, the House changed its employee handbook to effectively declare itself exempt from the open-records law without going through that whole messy business of actually voting on it and asking the governor to sign off on it. Bosma presumably thinks this furtive move a bit more advisable; he declined to discuss it with Kelly because of pending litigation.

The handbook defines “work product” as all types of communications to and from representatives and House staff members, including documents, emails, videos and voice mails.

In other words, anything that House members say to or write to or read or hear from constituents or lobbyists or campaign contributors is now beyond the reach of the open-records law.

The lawsuit seeking Koch’s emails, or any similar court challenge, is unlikely to get very far. The Indiana Supreme Court in 1993 declined to get involved in a dispute over legislative records, citing the doctrine of separation of powers between the legislature and the judiciary, so it’s doubtful that a trial judge would challenge the House’s right to declare itself above its own law.

So, there’s probably only one way to challenge the House’s high-handed move.

“You still have the court of public opinion,” said Steve Key, lobbyist and executive director of the Hoosier State Press Association.

So, it’s up to the rest of us. Unless we make some noise, it looks as though the Indiana House is going to get away with this.